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Tully v. Scheu

decided: December 30, 1980.



Before Seitz, Chief Judge, and Hunter and Garth, Circuit Judges.

Author: Seitz


The state of New Jersey appeals from an order of the district court granting John Patrick Tully's petition for a writ of habeas corpus and releasing him from state custody.


On January 7, 1975, Tully plead guilty to various criminal charges, including five murders, conspiracy and armed robbery, before the Honorable W. Thomas McGann, then a judge of the Superior Court of New Jersey. Judge McGann was informed that Tully had entered into a plea agreement with the state that provided for a maximum sentence of twenty years to run concurrently with any federal sentence that Tully might receive. Tully had agreed to testify against his codefendants at trial. Before Tully was sentenced, his codefendants negotiated guilty pleas with the state. Judge McGann accepted these pleas and imposed the short prison sentences recommended by the state, which varied from three to twelve years. However, one codefendant received a twenty-five-year sentence, which was concurrent with a longer federal sentence.

On July 30, 1975, Judge McGann sentenced Tully to an aggregate term of twelve to fifteen years to run concurrently with a federal sentence of twelve years imposed the previous day on unrelated charges. On August 8, 1975, Tully filed a timely motion for a reduction of sentence pursuant to N.J.Ct.Rule 3:21-10. Thereafter, Tully raised the contention that the state had breached an alleged secret plea bargain agreement. Tully understood the terms of this alleged bargain to be: (1) Tully would receive a shorter sentence than any of his codefendants; (2) to maintain credibility as a state witness, the reported terms of the bargain must include a substantial number of years; (3) if one of the codefendants was convicted at trial, he certainly would receive consecutive life sentences; (4) the state would not accept a guilty plea for a term less than twenty years from any of the codefendants; and (5) therefore, Tully's agreement to a maximum of twenty years would mean that his sentence would be less than that of any of his codefendants.

The history of Tully's sentence reduction motion is set forth in a prior opinion of this court, see Tully v. Scheu, 607 F.2d 31 (3d Cir. 1979) (Tully I ), and need not be detailed here. In essence, Judge McGann continued the hearing to a date well beyond the time limit prescribed by rule 3:21-10 for disposition of sentence reduction motions because Tully needed to acquire substitute counsel when it became apparent that his counsel would be required to testify concerning the alleged secret agreement. Judge McGann denied the state's motion to dismiss the proceeding, which was based on the time-limitation violation, but this decision was reversed by the Appellate Division of the Superior Court of New Jersey. See State v. Tully, 148 N.J.Super. 558, 372 A.2d 1323 (App.Div.), certif. denied, 75 N.J. 9, 379 A.2d 240 (1977).

Tully filed a petition for a writ of habeas corpus in federal district court, alleging that the denial of the opportunity to proceed with the sentence reduction hearing violated his sixth and fourteenth amendment rights. The district court denied the petition. On appeal, this court reversed the decision of the district court, holding that the New Jersey appellate division had interfered with Tully's "constitutional right to counsel at the sentence reduction hearing," and ordered that the writ of habeas corpus should issue "unless the State of New Jersey affords (Tully) a meaningful sentence reduction hearing within a reasonable time. " Tully I, 607 F.2d at 36 (emphasis added).

The state then scheduled Tully's sentence reduction hearing for December 18, 1979. Judge Lenox was to preside over this hearing because Judge McGann had retired. Two weeks before the scheduled date of this hearing, Tully filed in federal district court a motion for an order granting his application for a writ of habeas corpus and further requesting a stay of the state proceedings. This motion alleged that no meaningful hearing could be had before any judge other than Judge McGann; it was denied by the district court because the state should at least be given an opportunity to first conduct a meaningful hearing. Tully then moved in the state court to have Judge McGann recalled from retirement to preside over the hearing as authorized by N.J.Stat.Ann. ยง 43:6A-13(b) (West 1980 Cum.Supp.). The Chief Justice of the Supreme Court of New Jersey denied this motion because Judge McGann had entered into the practice of law and had become active in politics since his retirement, both of which made his recall inappropriate.

At the December 18 hearing, Tully's counsel asserted that several factors should compel Judge Lenox, in the exercise of his discretion, to reduce Tully's sentence. These factors included: (1) the disparity between his sentence and the more lenient sentences of his codefendants; (2) the unduly burdensome nature of his extended confinement, which was required to protect him from retaliation by his codefendants; (3) the state's withdrawal of its earlier nonopposition to a limited reduction of his sentence; (4) the unreported terms of his alleged secret plea bargain with the state; (5) his justifiable and irremediable detrimental reliance upon those terms; and (6) the breach of those terms when he was sentenced.

Judge Lenox bifurcated the sentence reduction hearing. He considered on December 18 those factors that he believed were addressed to his discretion, i. e., the disparity of the sentences and the burdensome nature of Tully's confinement. He assumed for purposes of this hearing that Tully had been validly convicted pursuant to the reported plea agreement. After extensive argument by Tully's counsel, Judge Lenox refused to reduce Tully's sentence based on these factors because Tully had not shown a grievous inequity that would tend to destroy either Tully's sense of having been treated justly or public confidence in even-handed justice. Judge Lenox set the secret-agreement claim for hearing on January 21.

The state then moved to dismiss the motion to reduce sentence on the grounds that the December 18 proceeding constituted the meaningful sentence reduction hearing required by Tully I, and that a postconviction relief proceeding under N.J.Ct.Rule 3:22, not a sentence reduction hearing, was the proper vehicle for hearing evidence on the validity of a guilty plea. After Tully's counsel persuaded Judge Lenox that Tully was not attacking the validity of his conviction because of the alleged breach, but was asking only that the alleged violation be considered in deciding whether to reduce the length of his sentence under rule 3:21-10, the judge denied the state's motion to dismiss the January 21 proceeding.

To avoid a protracted hearing, the judge assumed for purposes of the sentence reduction hearing only that the state had made and breached the alleged secret agreement. Judge Lenox made it clear that he was only considering this alleged secret plea agreement to the extent it was relevant to his discretion to reduce sentence under rule 3:21-10. Judge Lenox then ruled that he could not, in the exercise of his discretion to reduce sentence under rule 3:21-10, modify Tully's sentence to conform to the alleged secret agreement because the sentence that had been imposed was extremely lenient. He stated that he could not, under any ...

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